# In Re Grand Jury Matter, Antoni Gronowicz

> Court of Appeals for the Third Circuit · June 24, 1985 · 764 F.2d 983

URL: https://www.frixlaw.com/law-library/cases/9473616

## Case

- **Full name:** In Re GRAND JURY MATTER, Antoni GRONOWICZ, Appellant
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** June 24, 1985
- **Citations:** 764 F.2d 983; 18 Fed. R. Serv. 239; 11 Media L. Rep. (BNA) 2249; 54 U.S.L.W. 2029; 1985 U.S. App. LEXIS 20125
- **Precedential status:** Published
- **Opinion:** Dissent by Higginbotham
- **Judges:** Gibbons, Garth, Becker, Hunter, Higginbotham, Sloviter
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9473616

## How later opinions describe it (automated extraction)

- holding that there is “[n]o distinction having any first amendment significance” between criminal libel and civil libel or criminal fraud and civil fraud, for libelous or fraudulent speech both have no First Amendment protection in either the civil or criminal context

## Opinion text

A. LEON HIGGINBOTHAM, Jr., Circuit Judge,
dissenting.
Lurking behind today’s decision are the spectres of two quite distinct threats to freedom of the press. First, there is the prospect that criminal investigations predicated on the truth or falsity of the contents of nonfiction works dealing with important political and religious issues will so add to the risks inherent in publishing such works that fewer will be published, thus chilling the flow of information and ideas most central to the first amendment. For the reasons given in Part I of this opinion, I conclude with some regret that under prevailing first amendment doctrine this threat cannot be deemed to outweigh the government’s legitimate interest in investigating and prosecuting fraud. There is, however, another threat to freedom of the press posed by the investigatory procedure this court sanctions today — the prospect that compelled disclosure of records, notes, and unpublished information compiled in the course of preparing a work of nonfiction will so inhibit the gathering and recording of facts and intrude upon editorial processes as to chill protected speech. In previous cases this court has developed a formula for accommodating the sometimes competing interests of the criminal justice system and the media. In this case the government has failed to show that it cannot develop the information it needs without exploring the author’s notes and records. For the reasons stated in Part II below, I believe that such an unnecessarily intrusive procedure is impermissible under our established formula and that the judgment of contempt must be reversed. I therefore respectfully dissent.
I.
The difficult issues presented by this case call for especially rigorous first amendment analysis. This, in turn, requires that we first dispense with a number of red herrings that have obscured the true nature of the underlying dispute. First and foremost is the suggestion that this investigation has nothing to do with the. contents of God’s Broker. The book portrays numerous conversations between appellant and Pope John Paul II, often quoting the Pope’s words at length. One can readily surmise that this purportedly unprecedented access to the Pope and that these exclusive, in some cases sensational, *995 quotes were material elements in the sale of the publication and movie rights. The government’s purpose is apparent on the face of the subpoena at issue, from the supporting Schofield affidavits, 1 and from its briefs and arguments before the district court and this court — it seeks to ascertain whether the meetings portrayed in God’s Broker in fact took place, and whether the quotes reported therein are in fact the Pope’s “own words”. The ultimate inquiry in this case will be whether appellant was accurate in portraying what the Pope said to him.
Thus, the modified document request seeks “[a]ny and all notes, recordings (mechanical or otherwise), or other record, made by any means, containing, verbatim or in substance, the statements of Pope John Paul II ... as contained in the book.” (Emphasis added.) The second Schofield affidavit explains:
“These documents are necessary to determine if the book accurately portrays any notes of conversations with the individuals in the book to whom the statements are attributed.” (Emphasis added.) The government seeks appellant’s travel records “to determine if records exist showing that Gronowicz actually made the various trips to Poland, the Vatican, and other places which he claims to have visited in the book.” (Emphasis added.) Similarly, appellant’s passports are sought to determine whether they “show the travel which would be necessary for him to write the book as it is written.” His appointment books are sought “to determine if documentary evidence exists of various meetings which led to the attributions and statements made in the book.” (Emphasis added.)
I think it is beyond peradventure that this is an investigation into the truthfulness of the contents of God’s Broker. As I explain below, I do not find that fact dis-positive. Yet I think we give appellant’s first amendment contentions grievously short shrift if our analysis pretends that this investigation does not implicate the contents of published speech, but rather goes to, as the majority would have it, “misrepresentations about the contents” of published speech.
In a related vein, we must reject the government’s contention that this is a “commercial speech” case, much like an investigation of a fraudulent securities or real estate prospectus. God’s Broker is clearly a book addressing important social and political issues and is therefore, in the main, “core” first amendment speech. The fact that appellant sought to profit by its sale is of no consequence. See New York Times Co. v. Sullivan, 376 U.S. 254, 265-66 , 84 S.Ct. 710, 718 , 11 L.Ed.2d 686 (1964).
On the other hand, there is clearly no merit in appellant’s contention that the subpoena is an “impermissible shifting of the burden of proof in a speech-related area.” See Speiser v. Randall, 357 U.S. 513 , 78 S.Ct. 1332 , 2 L.Ed.2d 1460 (1958). Appellant is not now asked to “prove” anything. It is the government that must first prove to the grand jury that there is probable cause for indicting, and must ultimately prove all the elements of mail fraud beyond a reasonable doubt. And finally, we may put to one side the suggestion of appellant and amici that the government is attempting to bring a prosecution for seditious libel under the guise of mail fraud. The essence of seditious libel prosecutions— which I agree are impermissible under the first amendment — is the punishment of viewpoints, and, in particular, criticism of the government. 2 Indeed, I would readily agree that the first amendment prohibits *996 prosecutions based on the “falsity” of any ideas, opinions, viewpoints, or beliefs. 3 Thus, if we were to accept amici’s characterization of this investigation as an attempt by the government to side with certain Vatican officials in a dispute over Catholic Church doctrine, the first amendment implications (under the Establishment Clause as well as the Free Speech and Free Press Clauses) would be manifest. I do not, however, see anything in the record that would indicate that this investigation is not viewpoint-neutral. At this stage we must, I think, accept the government’s representation that they are evenhandedly investigating possible false statements of fact (contained in the book) that may have induced certain entrepreneurs to part untimely with their venture capital. As the many opinions in the recent case of Ollman v. Evans, 750 F.2d 970 (D.C.Cir.1984) (in banc), cert. denied, — U.S.-, 105 S.Ct. 2662 , 86 L.Ed.2d 278 (1985), indicate, the distinction between facts and viewpoints is a problematic one. Were I writing first amendment law from scratch, I would probably avoid such a distinction. Nonetheless, the distinction has been “elevated to constitutional principle,” Ollman v. Evans, 750 F.2d at 975 , and we cannot disregard it. In this case I think it is clear that statements of fact — and not the viewpoints of appellant or the Pope — are the focus of the investigation.
Thus, as I see it, the narrow question before us is to what extent the first amendment protects citizens from a viewpoint-neutral prosecution for making false statements of fact in a nonfiction work dealing with important political and religious issues. I believe that under prevailing first amendment doctrine that protection is quite limited, a recognition of the chilling effect that prosecution may have on truthful speech, rather than a recognition of any first amendment value in falsehoods. “Spreading false information in and of it-sed carries no First Amendment credentials.” Herbert v. Lando, 441 U.S. 153, 171 , 99 S.Ct. 1635, 1646 , 60 L.Ed.2d 115 (1979). Justice Powell, in Gertz v. Robert Welch, Inc., 418 U.S. 323 , 94 S.Ct. 2997 , 41 L.Ed.2d 789 (1974), summed up what I understand to be the prevailing view:
Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society’s interest in “uninhibited, robust, and wide open” debate on public issues____
Although the erroneous statement of fact is not worthy of constitutional protection, it is nevertheless inevitable in free debate____ And punishment of error runs the risk of inducing a cautious and restrictive exercise of the constitutionally guaranteed freedoms of speech and press____ The First Amendment requires that we protect some falsehood in order to protect speech that matters.
418 U.S. at 339-41 , 94 S.Ct. at 3006-07 (emphasis added) (footnotes omitted).
As a result of this line of analysis, libelous statements made in the media receive a measure of protection, not because of their intrinsic first amendment value, but as a prophylactic measure, to “eliminate the risk of undue self-censorship and the suppression of truthful material.” Herbert v. Lando, 441 U.S. at 172 , 99 S.Ct. at 1646 . See generally F. Schauer, Free Speech: A Philosophical Enquiry 168-173 (1982). Only libelous statements that are noncul-pable are protected in all contexts. Statements libeling private figures receive no first amendment protection if negligently made, even in the context of discussion of *997 important public issues. Compare Gertz v. Robert Welch, Inc., 418 U.S. at 346 , 94 S.Ct. at 3010 , with Rosenbloom v. Metromedia, Inc., 403 U.S. 29 , 91 S.Ct. 1811 , 29 L.Ed.2d 296 (1971) (plurality opinion). Libelous statements regarding public officials and “public figures” receive the highest degree of first amendment protection, and even they can be actionable if made with “malice” — i.e., knowingly or recklessly. New York Times Co. v. Sullivan, supra. Thus, unless fraud is to be treated differently from libel under the first amendment — and I see no readily apparent reason why it should, since it is also “speech” containing false statements of fact that cause palpable harm — it should not in any context (even, as here, in a book on important issues of public interest) be protected when knowing or reckless. It does indeed appear that under the fraud statutes the government must prove that the falsehoods were knowingly or recklessly made. See United States v. Sturm, 671 F.2d 749 (3d Cir.), cert. denied, 459 U.S. 842 , 103 S.Ct. 95 , 74 L.Ed.2d 86 (1982); United States v. Boyer, 694 F.2d 58 (3d Cir.1982).
Appellant concedes that he may be subject to civil liability for fraud, but argues that the first amendment does not permit such nice distinctions in the context of criminal prosecutions. I am sympathetic to this view. The consequences, and hence the coercive potential, of criminal prosecutions are profoundly more onerous than those of civil actions 4 . In this context, I find it more difficult to indulge the assumption that punishment of knowing or reckless falsehood will not deter truthful speech. Nonetheless, I think that under current first amendment doctrine “[t]he test is not the form in which state power has been applied but, whatever the form, whether such power has in fact been exercised.” New York Times Co. v. Sullivan, 376 U.S. at 265 , 84 S.Ct. at 718 . Protected speech may not give rise to criminal or civil liability absent a compelling interest, but unprotected speech may give rise to either. In Garrison v. Louisiana, 379 U.S. 64 , 85 S.Ct. 209 , 13 L.Ed.2d 125 (1964), a criminal libel case, the Court continued to hold that the “knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection,” 379 U.S. at 75 , 85 S.Ct. at 216 , and seemingly concluded that criminal libel prosecutions are permissible, subject only to the malice standard of New York Times. See also Herbert v. Lando, 441 U.S. at 156 n. 1, 99 S.Ct. at 1639 n. 1. More recently, the Court has stated:
The prevailing view is that the press is not free to publish with impunity everything and anything it desires to publish. Although it may deter or regulate what is said or published, the press may not circulate knowing or reckless falsehoods damaging to private reputation without subjecting itself to liability for damages, *998 including punitive damages, or even criminal prosecution.
Branzburg v. Hayes, 408 U.S. 665, 683 , 92 S.Ct. 2646, 2657 , 33 L.Ed.2d 626 (1972) (emphasis added). Again, unless fraud is different in some significant way from libel, the first amendment would not seem to prohibit a criminal prosecution.
I find the first amendment theory espoused in the dissents of Judge Hunter and Judge Sloviter an attractive one, and were we writing on a clean slate I would wholeheartedly endorse it. I have no doubt that investigations such as this one contribute incrementally to a climate that discourages the publication of books on controversial topics, but I do not see any basis in prevailing first amendment theory for stepping in and halting this investigation.
II.
The question of whether the government may inquire into the truthfulness of statements of fact in a work of nonfiction — and prosecute the author for knowing or reckless falsehoods — is analytically distinct from the question of how the government may proceed. Over the past fifteen years, the problems associated with attempts by government investigators to compel the press to turn over unpublished information in its possession have received considerable attention. This court, in an attempt to accommodate the competing interests, and under the authority of Federal Rule of Evidence 501, 5 has recognized an evidentiary privilege for journalists. See Riley v. City of Chester, 612 F.2d 708 (3d Cir.1979). Most relevant in the context of this case, we have held that “journalists possess a qualified privilege not to divulge confidential sources and not to disclose unpublished information in their possession in criminal cases.” United States v. Cuthbertson, 630 F.2d 139, 147 (3d Cir.1980) (emphasis added), cert. denied, 449 U.S. 1126 , 101 S.Ct. 945 , 67 L.Ed.2d 113 (1981). See also United States v. Criden, 633 F.2d 346, 348 (3d Cir.1980), cert. denied, 449 U.S. 1113 , 101 S.Ct. 924 , 66 L.Ed.2d 842 (1981).
Cuthbertson involved an order for CBS to produce all statements given to “60 Minutes” investigators by government witnesses. Writing for the court, Judge Seitz specifically rejected the contention that the privilege was limited to protecting confidential sources:
We do not think the privilege can be limited solely to protection of sources. The compelled production of a reporter’s resource materials can constitute a significant intrusion into the newsgathering and editorial processes____ Like the compelled disclosure of confidential sources, it may substantially undercut the public policy favoring the free flow of information to the public that is the foundation for the privilege.
630 F.2d at 147 . We found that a privilege against disclosure of a reporter’s “sources and unpublished notes” is necessary for “protecting confidential sources, preventing intrusion into the editorial process, and avoiding the possibility of self-censorship created by compelled disclosure____” Id. I believe that the latter two concerns — and possibly even the first — are implicated by the government’s sweeping request for appellant’s notes and records. The “hassle” and exposure that complying with subpoenas such as this one may entail, it has been observed, may lead journalists to suppress writings that could pique a prosecutor’s curiosity. See Blasi, The Newsman’s Privilege: An Empirical Study, 70 Mich.L. Rev. 229, 265 (1971); Comment, The Newsman’s Privilege: Government Investigations, Criminal Prosecutions and Private Litigation, 58 Calif.L.Rev. 1198, 1207-08 (1970). Professor Blasi empirically verified that the “reporters most hindered by the possibility of being subpoenaed are those *999 who seek a composite picture, who check and cross-check their information with numerous sources ... and who keep extensive files and tapes for future verification reference____” 70 Mich.L.Rev. at 271. See also United States v. Burke, 700 F.2d 70 (2d Cir.) (privilege extends to magazine’s “work papers”), cert. denied, — U.S. -, 104 S.Ct. 72 , 78 L.Ed.2d 85 (1983).
Concededly, our prior cases do not deal with the. precise situation we now have before us — where a subpoena is directed to the author of a book who is the target of a grand jury investigation into the truthfulness of his assertions of fact — but I believe that the privilege and its rationale are broad enough to cover this case. In Cuth-bertson we recognized that even compelled production of unpublished information for in camera inspection by the court may inhibit the gathering and dissemination of information, and we applied the privilege to such an order. 630 F.2d at 148 . See also New York Times Co. v. Jascalevich, 439 U.S. 1304 , 98 S.Ct. 3060 , 58 L.Ed.2d 12 (1978) (Marshall, Circuit Justice). A fortio-ri, it should apply to grand jury subpoenas. 6 Nor can it matter that appellant’s medium was a book, rather than a newspaper article (as in Criden) or a television news magazine (as in Cuthbertson). And finally, I do not think the journalist’s privilege, any more than any other evidentiary privilege, can evaporate merely because the person claiming it is the target of the investigation, though undoubtedly it may be somewhat easier for prosecutors to overcome the privilege in this situation. Indeed, in Cuthbertson and Criden we recognized that even the fifth and sixth amendment rights of a defendant seeking exculpatory information cannot vitiate the privilege — rather, these are interests that the privilege is designed to accommodate. The grand jury’s interest in investigating and accusing clearly stands on no higher plane than a defendant’s right to compulsory process. See generally Comment, The Newsperson’s Privilege in Grand Jury Proceedings: An Argument for Uniform Recognition and Application, 75 J.Crim.L. & Criminology 413 (1984). Like other evidentiary privileges, this one simply recognizes that some interests and relationships are “of sufficient social importance to justify some incidental sacrifice of sources of facts needed in the administration of justice.” Herbert v. Lando, 441 U.S. at 183 , 99 S.Ct. at 1652 (Brennan, J., dissenting) (quoting McCormick on Evidence 152 (2d ed. 1972)).
The journalist’s privilege accommodates these competing interests by permitting access to unpublished information held by journalists where a three-part showing is made:
First, the movant must demonstrate that he has made an effort to obtain the information from other sources. Second, he must demonstrate that the only access to the information sought is through the journalist and her sources. Finally, the movant must persuade the court that the information sought is crucial to the claim.
Criden, 633 F.2d at 358-59 . I have carefully reviewed the government’s Schofield submissions, and I am convinced that they cannot meet this burden. Their sweeping subpoena would require production of some information that could have only the most attenuated relevance to any alleged mail fraud; for example, “[a]ny and all handwritten or typed documents containing the name, signature, or any other notation con-notating the names of Pope John Paul II, John Cardinal Krol, Cardinal Rubin, Cardinal Wyszynski and/or Cardinal Glemp for the period January 1, 1979 to the present.” Though the government claims this request is necessary to determine whether there exists written correspondence between Gronowicz and the individuals named, I think it is clear that it must encompass nearly every piece of paper appellant accu *1000 mulated in preparing God’s Broker. The subpoena further seeks “[a]ny and all written correspondence and/or letters bearing the signature of any agent, employee or representative of the Vatican and/or the Archdiocese of Philadelphia for the time period January 1, 1979 to the present.” It is necessary that these documents be examined, we are told, “to determine what representations were made to agents of the Roman Catholic Church in order to garner the various statements which Gronowicz makes in the book.” Mail and wire fraud are concerned with false representations used to obtain money or property, not with representations made to garner statements. The breadth of these requests bespeaks a fishing expedition, not an attempt to obtain “crucial” information. Much of the material sought that might arguably be “crucial” could probably be obtained from sources other than the appellant. In any event, the record does not indicate that the government has made any effort to conduct its investigation in a manner less threatening to a free press.
In this case, the government has utterly failed to contend or to show that it cannot develop the information it seeks through other sources, without having to explore the author’s notes and records. My disagreement with themajority is not as to whether mail fraud can be investigated, but rather as to how it can be investigated when the Cuthbertson privilege is involved. I have no doubt that the repeal of the Cuthbertson privilege would be a great convenience to prosecutors. But until that tragic day occurs prosecutors must live with the rule and at least pursue other sources before compelling production of an author’s notes and records, and even then they must narrowly circumscribe their subpoenas.
The government has not made a showing of need that would overcome appellant’s qualified privilege to resist disclosure of documents compiled in the preparation of God’s Broker. Therefore, I would reverse the judgment of contempt on this narrow ground. Such a disposition would not preclude the government from continuing this investigation or, indeed, from seeking enforcement of a modified subpoena.
. See In re Grand Jury Proceedings (Schofield I), 486 F.2d 85 (3d Cir. 1973); In re Grand Jury Proceedings (Schofield II), 507 F.2d 963 (3d Cir.), cert. denied, 421 U.S. 1015 , 95 S.Ct. 2424 , 44 L.Ed.2d 685 (1975).
. The Sedition Act of 1798, ch. 74, 1 Stat. 596 (1845) — the bete noire of appellant’s brief — punished “false, scandalous and malicious writing or writings against the government of the United States____” There is "broad consensus that the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment.” New York Times Co. v. Sullivan, 376 U.S. at 276 , 84 S.Ct. at 724 .
. I believe, as Justice Douglas wrote, that "matters of belief, ideology, religious practices, social philosophy, and the like are beyond the pale and of no rightful concern of government, unless the belief or the speech, or other expression, has been translated into action." Branz-burg v. Hayes, 408 U.S. 665, 715 , 92 S.Ct. 2646, 2688 , 33 L.Ed.2d 626 (1972) (dissenting opinion).
. But see New York Times Co. v. Sullivan, 376 U.S. at 277-78 , 84 S.Ct. at 724-25 (footnote omitted):
The fear of damage awards under a rule such as that invoked by the Alabama courts here may be markedly more inhibiting than the fear of prosecution under a criminal stat-ute____ Alabama, for example, has a criminal libel law which subjects to prosecution "any person who speaks, writes, or prints of and concerning another any accusation falsely and maliciously importing the commission by such person of a felony, or any other indictable offense involving moral turpitude,” and which allows as punishment upon conviction a fine not exceeding $500 and a prison sentence of six months____ Presumably a person charged with violation of this statute enjoys ordinary criminal-law safeguards such as the requirements of an indictment and of proof beyond a reasonable doubt. These safeguards are not available to the defendant in a civil action. The judgment awarded in this case — without the need for any proof of actual pecuniary loss — was one thousand times greater than the maximum fine provided by the Alabama criminal statute, and one hundred times greater than that provided by the Sedition Act. And since there is no double-jeopardy limitation applicable to civil lawsuits, this is not the only judgment that may be awarded against petitioners for the same publication.
I would also note that the record indicates that publication of appellant’s biography of Greta Garbo has been delayed many years by the threat of a lawsuit by Miss Garbo.
. This rule provides in relevant part:
Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the, privilege of a witness ... shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience____
. As a general rule, evidentiary privileges apply to grand jury proceedings. See United States v. Calandra, 414 U.S. 338, 346 , 94 S.Ct. 613, 619 , 38 L.Ed.2d 561 (1974) ("[Tjhe grand jury’s subpoena power is not unlimited. It ... may not itself violate a valid privilege, whether established by the Constitution, statutes, or the common law.”) (footnote omitted); see also Fed.R.Evid. 1101.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9473616. Public record. Not legal advice.